Deciding what is minor on a licence

Last week I discussed the role of the licensing officer in dealing with representations from neighbours.

But there is another function that requires just as much judicial interpretation — whether or not a variation to the licence can be classed as 'minor'.

Why is this important?

Well, the minor variations procedure, introduced to the Act in June 2009, allows for a cheaper and possibly quicker alternative to the full-scale variation process, which requires a newspaper advertisement, notification to all the responsible authorities, a large fee and a 28-day wait, even if there are no objections.

A minor variation costs £89, does not need a newspaper ad or notification to all the responsible authorities and can be granted in 15 days.

However, the key issue for applicants is whether what they propose to change comes within the minor variation process. If it is held not to do so, there is no appeal and the applicant has to begin the full variation process from scratch.

In the light of what I wrote last week, it is interesting that the Government once again recommends in the Guidance that this decision should be made by the licensing officer and not the authority.

He can consult with other parties, notably the responsible authorities such as the police and environmental health, in reaching the decision whether to accept or reject the application, and he has help from the Guidance and from the Act, which lays down what cannot be changed by this procedure. Chief among these is the addition of extra time to the licensing hours for the sale of alcohol, but one of the key prohibitions is for a proposal that would "vary substantially" the premises to which the licence relates.

It is in this particular area that the opinion of the licensing officer has been tested to a considerable extent in different places, and decisions have varied widely. Some officers take the view that any structural variation that could potentially allow more or easier drinking access (such as by taking down a small internal wall or extending the bar counter) must be refused.

Others are more flexible in their interpretation and approach, feeling that the normal round of public- house improvements should be permitted unless there is a clear set of progressive moves to enlarge the premises that require the licensing authority to adjudicate.

Caution​

So it is by no means clear for applicants which way the licensing officer will jump. Legal advisers will do their best to find out in advance, but, of course, they cannot tell for sure, and there is sometimes a more cautious approach that leads them to advise clients to take the 'long' route in any case.

But there is no doubt that the true flexibility that was intended by this introduction has not really come about, and the stricter authorities are encouraged by the fact that there is no appeal provision at all. No means no.

There is no doubt that these provisions put a great deal of power into the hands of the licensing officer and if the fresh changes proposed in the Police Reform & Social Responsibility Bill go through, with the relevant licensing authority being allowed to make its own representations, the role of the licensing officer will be even more interesting.

Will he be charged with initiating an objection in front of his own committee, or will a separate individual represent the council, with the officer, as now, preparing background information for the hearing?

These questions have not really been addressed by the Home Office, unsurprisingly, but they are going to arise if and when the changes become law.